State v. Beattie

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as well as formal revision before publication in the Vermont Reports.
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                                No. 90-121


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 1, Bennington Circuit

Wendell Beattie, Sr.                         March Term, 1991


Arthur J. O'Dea, J.

Theresa St. Helaire, Bennington County Deputy State's Attorney, Bennington,
  for plaintiff-appellee

David G. Reid, Public Defender, Brattleboro, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     ALLEN, C.J.   Defendant appeals from his conviction of actual physical
control of a motor vehicle while under the influence of intoxicating liquor
in violation of 23 V.S.A. { 1201(a)(2).  We affirm.
     Deputy Sheriff Edward Smith testified that at 1 A.M. on April 24, 1989,
he was alerted to defendant's van parked in a grocery store parking lot by a
passing motorist, who stated that the person in the van was either asleep,
passed out, or dead.  Officer Smith approached the van, which had its engine
running.  Observing defendant slumped over the wheel, Officer Smith banged
on the door.  Defendant awoke and stepped on the gas pedal for three to five
seconds before releasing it.  When defendant rolled down the window, Officer
Smith smelled a strong odor of liquor and observed that defendant's eyes
were bloodshot and watery and his speech mumbled and confused.  Upon getting
out of the van, defendant had trouble with his balance.  Officer Smith had
defendant perform three dexterity tests, two of which he performed poorly.
A breath sample was taken at 2:12 A.M. and was analyzed as indicating a
.168 % blood-alcohol content (BAC).
     Defendant testified that he had worked until 10 P.M. on April 23
installing a heating system.  He consumed three beers between 2:30 and 9:45.
After work he returned home and then went to the store to get dinner for his
son.  Upon arriving, he lay his head on the wheel and rested his eyes
because of exhaustion. He left the car running because it was cold.  He
refuted much of the officer's testimony concerning his speech, his balance
problems, and his performance on the dexterity tests.  He denied that he was
under the influence of intoxicating liquor.
     Defendant asserts five grounds for reversal.  Because we find each to
be without merit, we affirm.
                                    I.
     Defendant's arrest by Windham County Deputy Sheriff Smith occurred in
the Town of Winhall, located in Bennington County.  Defendant filed a motion
to dismiss below on the basis that Deputy Sheriff Smith did not have
jurisdiction to make the out-of-county arrest.  The court held that Deputy
Sheriff Smith had statewide jurisdiction, and defendant contests this
holding on appeal.
     The statutory provisions granting statewide jurisdiction to law
enforcement officers were enacted by 1987, No. 122 (Adj. Sess.). (FN1) Section 1
of the Act added 24 V.S.A. { 307(c), which reads:  "The powers of deputy
sheriffs and special deputy sheriffs with respect to criminal matters and
the enforcement of the law may be exercised statewide."  Section 2 of the
Act added 24 V.S.A. { 312, entitled "Jurisdiction of sheriffs," which
provides:
           (a) Subject to subsection (b) of this section, the
         powers of sheriffs with respect to criminal matters and
         the enforcement of the law may be exercised statewide.

           (b) A sheriff may exercise law enforcement powers
         statewide only if the sheriff has completed the training
         requirements established for full-time law enforcement
         officers under section 2358 of Title 20.

Defendant's contention is that even though Deputy Sheriff Smith had
completed the training requirements established for deputy sheriffs in 24
V.S.A. { 311, because he had not completed the training requirements
established for full-time law enforcement officers he lacked jurisdiction by
force of { 312(b).  He argues that the term "sheriff" in { 312(b) is meant
to encompass deputy sheriffs.
     We disagree.  Defendant's reading of the statutory provisions renders {
307(c)'s distinct grant of statewide jurisdiction to deputy sheriffs wholly
superfluous.  If the legislature intended for { 312 to apply to deputy
sheriffs as well as sheriffs, there was no reason for them to enact {
307(c).  We decline to interpret the Act in a way that renders a significant
part of it pure surplusage.  See State v. Kreth, 150 Vt. 406, 409, 553 A.2d 554, 556 (1988) (Court reluctant to find part of statute surplusage); State
v. Tierney, 138 Vt. 163, 165, 412 A.2d 298, 299 (1980) (construction of
statute that renders a portion of it surplusage is not favored); 2A N.
Singer, Statutes and Statutory Construction { 46.06, at 104 (C. Sands 4th
ed. 1984) ("A statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous . . . .")
(footnote omitted).  The most natural interpretation of the statutory
provisions, and one that gives effect to each provision, is that { 307(c)
and { 311 comprise the grant of statewide jurisdiction and the training
requirements for deputy sheriffs, while {{ 312(a) and (b) comprise the grant
of statewide jurisdiction to sheriffs and the training requirement necessary
for sheriffs to exercise this jurisdiction.
     Defendant counters that such an interpretation is absurd because it
allows deputy sheriffs with less than full-time training to exercise
statewide jurisdiction while not allowing sheriffs, who appoint the
deputies, to do the same.  Why would the legislature impose { 312(b)'s full-
time training requirement on sheriffs and not on deputy sheriffs?  One
answer is that unlike deputy sheriffs, who have to meet the training
requirements of { 311 to be appointed, sheriffs as elected officials have no
training requirements imposed on them.  See 20 V.S.A. { 2358(d).  Section
312(b), by qualifying the grant of statewide jurisdiction to sheriffs, is a
means of imposing a training requirement on them.  Section 312(b)'s full-
time training requirement thus is not a legislative determination that this
is the minimum training needed by a police officer to exercise statewide
jurisdiction.  Rather, it is the training requirement the legislature deemed
appropriate for a sheriff.
                                    II.
     The arresting officer's affidavit of probable cause indicated that he
had been told by a passing motorist that there was a person "asleep, passed
out, or even dead behind the wheel of a van in Grampy's parking lot."  The
court granted defendant's motion in limine to exclude this statement, and
allowed the officer to testify only that he received a report from a passing
motorist.  On the second day of trial the State asked the court to
reconsider its ruling.  It argued that defendant, through his own testimony
and through cross-examination of the officer, had abused the motion in
limine by casting doubt on the officer's reasons for approaching defendant's
van.  The court agreed, and allowed the officer on rebuttal to repeat the
passing motorist's statement.  Defendant contends that this statement was
hearsay and its admission violated his confrontation clause rights.
     The statement was not hearsay, because it was not offered for the truth
of the matter asserted.  V.R.E. 801(c).  It was not offered to prove that
defendant was "asleep, passed out, or even dead."  Rather, it was offered to
prove only that the officer thought he had reason to approach defendant's
van.  See, e.g., United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985)
("out of court statement is not hearsay if it is offered for the limited
purpose of explaining why a government investigation was undertaken"), cert.
denied, 474 U.S. 1081 (1986); Olson v. State, 698 P.2d 107, 113-14 (Wyo.
1985) (officer's testimony as to passing motorists' statements concerning
defendant's erratic driving was not hearsay because only offered to explain
why officer acted); see also C. McCormick, McCormick on Evidence { 249, at
733-34 (E. Cleary 3d ed. 1984) ("When it is proved that D made a statement
to X, with the purpose of showing the probable state of mind induced in X, .
. . the evidence is not subject to attack as hearsay.").  The introduction
of such a statement must be approached with caution, however, because there
is the danger that the jury will use it as proof of the matter asserted.  We
commend the court's initial limitation.  See C. McCormick, supra, at 734
(an arresting officer should be allowed to explain his presence on the
scene, but preferably through testimony that he acted "upon information
received" or words to that effect).  But we also recognize that defendant's
abuse of the limitation warranted introduction of the actual statement.
Further, defendant's confrontation clause rights were not violated. For the
purpose offered, it mattered not whether the statement was correct, but only
whether it was spoken to the officer.  An opportunity to cross-examine the
officer was sufficient to determine whether the statement was in fact made
to him.  See 4 J. Weinstein & M. Berger, Weinstein's Evidence ^ 801(c)[01],
at 82 (1990) (since whether the statement was spoken is "within W[itness]'s
own knowledge, and W[itness] is under oath and subject to cross-examination
and observation of his demeanor, the trier of fact can assess his
credibility.  If the fact that D[eclarant] made the statement is relevant
regardless of its truth, it does not matter that the trier of fact is unable
to evaluate D[eclarant]'s credibility.") (footnote omitted).
                                   III.
     Defendant next takes issue with some additional evidentiary points.
First, defendant claims that the court erred in not allowing defendant to
appear in surrebuttal for the purpose of testifying about his lung problems.
The court based its ruling on the fact that the State's chemist had
testified during the State's case-in-chief about the effect of lung problems
on the conversion ratio for BAC, yet the issue had remained unexplored
during the subsequent direct and redirect examination of defendant.
Surrebuttal was not allowed because there had been ample prior opportunity
for defendant to address the issue.  This ruling was committed to the
court's discretion by V.R.E. 611.  State v. Valley, 153 Vt. 380, 393, 571 A.2d 579, 586 (1989).  We cannot say that this discretion was abused here.
See id. (court properly denied defendant's request to reopen cross-
examination of witness where there was no reason the questioning could not
have been completed fully during the initial cross-examination).
     Second, defendant claims error in the court allowing the chemist, after
testifying, to remain in the courtroom during defendant's testimony and then
to be called in rebuttal.  As amended prior to the instant trial, V.R.E. 615
limits a party's ability to exclude a witness from the courtroom: if the
witness's testimony has been completed the witness may remain, even if the
witness may be subsequently called in rebuttal, unless a party shows good
cause for exclusion.  Here, the chemist had completed his testimony within
the meaning of the rule, and no good cause was shown.  The argument that
good cause existed because the expert could, on rebuttal, comment on
defendant's testimony is not persuasive.  The expert, through the use of
hypotheticals based on defendant's testimony, could make the same comments
even if sequestered.  Further, under V.R.E 703, an expert witness is
entitled to base his or her opinion on the facts presented in evidence at
trial.  We find no error.
     Third, defendant claims that the chemist impermissibly commented on
defendant's credibility.  On rebuttal, the expert testified it was not
possible for defendant to have a .168 % BAC at 2:12 in the morning if, as
defendant testified, he had consumed only three beers between 2:30 and 9:45
P.M.  The expert testified that with such a drinking pattern the defendant
would have no BAC at 2:12 in the morning, and that to achieve a level of
.168 % with such a drinking pattern defendant would have had to consume at
least fourteen standard drinks.  Defendant did not object to this testimony,
and accordingly our review is limited to plain error.  V.R.Cr.P. 52(b); see
State v. Ross, 152 Vt. 462, 468, 568 A.2d 335, 339 (1989).  The chemist's
testimony did not impermissibly intrude on the jury's province of
determining credibility.  It simply was an analysis of test results which
was inconsistent with defendant's testimony, and the jury was free to choose
between it and defendant's testimony.  Admission of the expert's testimony
was not error, let alone plain error.  Cf. State v. Bushey, 149 Vt. 378,
380-81, 543 A.2d 1327, 1328-29 (1988) (not plain error for State's expert
witness to testify that for defendant to achieve his BAC result, he must
have had at least eight or nine drinks); State v. Senecal, 145 Vt. 554, 559,
497 A.2d 349, 351-52 (1985) (allowing expert to testify that the only way
the individual could have a BAC below .10 % at 2:30, consistent with a BAC
of .19 % at 3:30, would have been if he had seven drinks within the
preceding half-hour; "The credibility of an expert witness and the weight to
be given his testimony is a matter for the jury.").
                                    IV.
     Defendant's next contention is that the State's amendment of the
information after voir dire violated V.R.Cr.P. 7(d) and due process. The
original information charged defendant with operation of a motor vehicle
under the influence of intoxicating liquor in violation of 23 V.S.A. { 1201.
Voir dire and selection of the jury panel took place on December 6, 1989,
but the panel was not sworn until trial.  The State amended the information
on December 8, striking operation and charging actual physical control.
Defendant's motion opposing the amendment was denied by the court.  Trial
began on January 10, 1990, and defendant was convicted of actual physical
control.
     Rule 7(d) provides: "If no additional or different offense is charged
and if substantial rights of the defendant are not prejudiced, the court may
permit an . . . information to be amended at any time after trial has
commenced and before verdict or finding . . . ."  Rule 7(d) applies only
after trial has commenced.  Defendant argues that, for purposes of Rule
7(d), trial commences at voir dire.  We disagree.  There is nothing in the
Rule to suggest that the time for commencement of trial is other than the
familiar time for double jeopardy purposes.  See State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990) (amendment during jury selection was not after
commencement of trial; trial commences when jeopardy attaches upon the
impanelling and swearing of the jury); see also Cervantes v, People, 715 P.2d 783, 786 (Colo. 1986) (en banc) (because amendment was "after the jury
was chosen and sworn" it was not "prior to trial" for purposes of amending
the information).  In a jury trial, jeopardy attaches at the impanelling and
swearing of the jury.  State v. Corey, 151 Vt. 325, 330, 561 A.2d 87, 89
(1989).  Because the amendment here was made prior to this time, Rule 7(d)
is not applicable.
     This interpretation of the Rule does not leave defendant without
protection.  Defendant retains the constitutional guarantee of fair notice
of the charges against him.  See Reporter's Notes, V.R.Cr.P. 7(d), at 41
("The right to amend prior to trial remains subject . . . to the
constitutional requirement that the defendant receive fair notice of the
charge."); see also State v. Holden, 136 Vt. 158, 159-60, 385 A.2d 1092,
1093-94 (1978) (amendment on day of trial, immediately prior to drawing of
jury, should have been conditioned on granting defendant's request for
continuance).  Defendant was not prejudiced in his preparation for trial.
The amendment was made over a month prior to trial.  In addition, the
affidavit of probable cause provided to defendant on the date of arraignment
indicated the arresting officer's belief that defendant was in "actual
physical control."  See State v. Loso, 151 Vt. 262, 265-66, 559 A.2d 681,
684 (1989) (affidavit of probable cause accompanying the information can be
considered in assessing whether defendant received fair notice of the
charge).   Nor can we perceive any possible prejudice to defendant's voir
dire because of the amendment from operation to actual physical control.
Accordingly, we hold that defendant received fair notice of the charge
against him.
                                    V.
     Finally, defendant argues that he was denied a fair trial because the
officer, during cross-examination by defense counsel, twice made reference
to giving defendant an alcosensor test.  Former 23 V.S.A. { 1202(b) (current
version at 23 V.S.A. { 1203(f)) provided that "[t]he results of the breath
alcohol screening test shall not be introduced as evidence."  The State did
not elicit this information on direct examination, and although the fact
that an alcosensor test is given should be avoided where an officer's basis
for taking a breath sample is not at issue, see State v. LeBeau, 144 Vt.
315, 319, 476 A.2d 128, 130 (1984); 23 V.S.A. { 1202(a), the legislative
proscription is only on the introduction of the test results.  Defendant was
not deprived of a fair trial because of the officer's statements.
     Affirmed.

                                        FOR THE COURT:




                                        Chief Justice



FN1.    Defendant has moved in this Court to strike from the State's
supplemental printed case affidavits from the president of the Vermont
Sheriffs Association, the executive director of the Vermont Criminal Justice
Training Council, and the principal lobbyist for the Vermont Police
Association, outlining their understandings of the Act.  Their statements
are entitled to no weight in the interpretation of the Act, and have been
accorded none by this Court.  See Western Air Lines v. Board of
Equalization, 480 U.S. 123, 131 n.* (1987)("Appellants' attempt at the
creation of legislative history through post hoc statements of interested
onlookers is entitled to no weight . . . .").